1929-08-26 — Page 4

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COURTS DIFFER

THE CHINA MAIL,

SHIPPING

beer

SECTION.

because she was in such a condition that she required permanent repairs— and they also claimed for the loss of trading profts during the time, when they would have done the pernianent repairs, but for the fact that the ship was sunk. The learned registrar gave thom the cast of permanent repairs, rightly and obviously, I should think bocause that damage had been done to the ship, and at the time the ship was sunk she was of less value beenuse of warranty contained in the "expected the damage done by the previous col ready for delivery between, say.ision.

But he said: "As regards the January 10 and January 31" The con- damages for detention, however, they tract stated that the Royal City" was

due in London on December 24, and were, in his opinion, clearly inadmis sible. Being purely consequential dam. was thence going to Hamburg and ages they were on a different footing Antwerp, and, therefore, it was known from the estimated cost of repairs for she would ultimately come to Antwerp, an actual injury to the plaintiffs' chat. and the contract was for her to be detel. The principle to be applied was re

United Kingdoms port at seller's option." ages for a

Astitutio in integrum, and give dam.

oss of time which had not

this maxim. "The claim, therefore, for occurred would be to act contrary to

loss of the use of the vessel'could not be allowedl."

In "The Journal of Commerce alivered to buyer at Antwerp or peared a report of the appeal to Mr. Justice Bateson; in the

Admiralty

I think it is quite clear on the facts Court, by the owners of the "Tork," which had been in collision with the that the seller intended to deliver her Cardiff steamer "Royal City,”

at Antwerp. She reached Antwerp on *in Barry

January 10 with her cargo on board, Docks, on March 12 a year ago.

Mr. Justice Hill at p. 362 in the The appeal rais & curious point which she had to deliver. The con about the detention allowance of the tract provides first of all that the con: Kingsway said: "If it is certain that tract was "subject to buyer's approval repairs canuct at any time be effected, Cardiff District Registrar in respect of after inspection afloat," that is to say, as, for example, if the ship is at the the "Royal City's visit to Antwerp in the sale and purchase is subject to the time of the reference already lost un the following January, whither she had buyer's approval after seeing her repaired, nothing, in my opinion, can gone to be sold. Certain repairs were afloat; and the contract goes on to pro- carried out at Antwerp, Mr. Justice

be allowed for detention. Such was Bateson tock Mr. Langter's view for vide: "The buyer shall commence the the case of the "Glenfinlas," recently the "Royal City, that the contract of inspection of the steamer afloat within before Mr. Registrar Roscoe, to which 24 hours of receiving "notice of steam- I was referred. If there neither has sale did not debar the Cardiff owner's readiness for inspection, and if on heen, nor can be, detention during re from using the vessel until her delivery superficial inspection the buyer is satis-pairs, the owner can suffer no loss by date. February 25, and declined to in-fed with the general condition of the reason of detention." Lord Sterndale terfere with the finding in the Cardiff steamer, seller shall at his own risk (Lord Justice Pickford, as he ther District Registry. The owners of the and expense open up the engines, bollers was) at the bottom of p. 358 said this: "York." dissatisfied, appealed again, and tanks for the Inspection of the "He that is Mr. Justice Hill, took n the Appeal Court consisting of steamer afloat by the buyer; and if the the view, and I should agree if it were Lords Justices Scrutton and Greer, have found they were right, and have steamer is acceptable to the buyer, he necessary to decide it, that if at the reversed Mr. Justice Bateson and the to pay for the expense of closing up time af a ference the slip had been Cardiff

such engines, boilers, tanks and ma Registrar

of the together. The

in fact lost, as in the case chinery, The buyer shall declare a "Glenfinlas," and therefore the repairs items

for loss

they of profit, sakd

ceptance or refusal of the steamer in never could be done, and there never have should never

writing within 24 hours after comple-could be a detention causing loss of brought into the account, for tion of such inspection afloat."

ship, the

profitable employment to the from another

ship. cause,

The "Royal could not

at Ant owner at all, then those damages could arrived City" worked have

at the

werp with a cargo on board on January not be recovered. When I say lost, I Lime that the repairs were carried out.

10, and notice was apparently given of mean lost by some circumstances out Lord Justice Scratton found an illus the steamer's readiness for inspection side the collision." tration of the position in the recent while the cargo was discharging. Baltic ice. Repairs done in the ice inspection took place and the buyer was would not carry loss of profits for their satisfied with

the superficial inspec period, because by the ice the ship was tion of the steamer, and so the next shut up from making profits. Therestop had to proceed. The next stop was had been a tender, and this curious case that having got the cargo

out and a question of costs below turned on by the contract, the seller had to open in the Baltic and detained by ice so that ended with the farcical disclosure that being ready for that work provided for matter of 4 4s, more or less problematical,

up the engines, boilers, and tanks for she could not trade at all, takes the For the successful appellants, the owners of the "York," were Mr. C. R January 16, the work was finished on

inspection That he began to do on opportunity of doing repairs. She may Durlop, KC, and Mr. E. W. Eright January 28, and the buyer was satis view she is not

recover the cost of repairs, but in my

entitled say: mar, instructed

Gilbert fied with what he saw on that inspec- have Just so many days trading profit," by Mesurs. Robertson and Co., Cardiff, London tion.

condition, because the pre-existing agents, Messrs. W. A.

Cramp

Consequently there came the last which has nothing whatever to do with and for the Royal City," Mr. George

stage, which was that the steamer, the collision, is that, however much she Langton, K.C., and Mr. Cyril Miller, having been stemmed for dry dock, she wanted to trade, she could not because instructed by Messrs. Ingledew and went into dry dock on February 2, and she was held up by ice. Another case Sons, Cardiff, London agents Messrs the inspection of the bottom and other which occurred to me was the case of Ingledew, Sons and Brown.

shaft took place in February. Mean mering or trading, and the ship- under water parts and the tail end an embarge preventing any ship from

while the engines, boilers tanks

and owner, taking advantage of his ship were opened up, and the

the being held up by the embargo, deciding ship, therefore, could not possibly pro- to do

and Sons,

The view which impressed the courts below was that the vessel was condition to earn, because she had been earning regularly sine the colli

The

Baltic Ice Analogy I pot daring the argument other in stances where apparently the same re- suit would follow. In the recent re- markable winter all the ports of the by ice. Supposing that a vessel caught Baltic have been permanently blocked

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is

casc in

Ad

de

was taken to put right the collision Again, I do not think it would be damage done by the "York," which possible for him to say, "I claim from could be done without going into dry you the loss of profit on trading." be docks, and which involved dealing with cause it was quite impossible, owing to one plate and possibly fairing some circumstances not connected with the others work which, it is agreed, would collision at all-namely, the embargo take four days, and that four days' that he should trade, and consequently work was done between January 16 and he never last any profits of trading be January 28--that is to say, while the cause of the collision.

If I under-

ship was in such a position owing to stood Mr. Langton's argument, it was what was being done under the con- that it was so uncertain when the re- tract of sale that she could not have pairs could be done that you could not traded if she had wanted to.

treat the various detentions under the contract of sale and the collision as each other. It appears to me, or the having necessarily anything to do with facts, that the owners of the "Royal City intended throughout the time of the contract of sale to take the ship

did

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The only other point I desire to make

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to

AUGUST SEPTEMBER SAILINGS DEPARTURE HOURS:

Bong Kong 5.30 p.m. Wuchow 1.30 p.m. S.S. TAI HING"

[1,068 tons-Gupt. Trott,]

TUES. 27th

AUGUST

SEPTEMBER

2nd TUES. 17th 7th MON. 23rd 28th

MON. SAT. THURS. 12th

SAT.

S.S. TAI MING"

(C49 tons-Cupt. G. J. Spink.] FRI.

30th

AUGUST

WED.

SEPTEMBER

4th FRI 9th

20th

WED.

25th

MON.

SUN. 15th MON. 30th For information apply to

Co.,

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, Connaught Roan wel,

Phone: Central 893,

The root principle in the law as to

the measure of damages is this: dar ages are intended to be a compensation

and therefore we are entitled to four contract, which, I have no repairs, unable to conceive where he could find tien aa that in which he would have

of

પ

been if no wrong had been committed been no against him, if there had

ceptions because there have been cases breach of his right.

That rule may be subject to some ex- in which it has been decided that there is an absolute rule of law en- titling a man to a particular measure

not be said to prevent her because he might have refused her on February 25. All that, the Appeal Court held, had nothing to do with the ease.

Lord Justice Serutton said: This A MARU

from the appea! (Calls at Karachi). DURBAN, LOURENCO MARQUES, BEIRA, DAR-ES-SALAAM, ZANZI.miralty Judge confirming the

cision of the District BAR & MOMBASA-Via Singapore & Colombo.

Regia trar al Cardiff assessing damages for collision. The only point in the whether the ship, if entitled to damages, caut reinver the loss of profits of the ship's trading when repairs had been done at a time when, even apart

Could Not Trade from the collision, the ship could not

Then comes the question: have traded at all, for the simple rea- damages ought the Registrar at Cardiff What son that she had her engine opened up to assess as the damage done by the so that she could not proceed; and York Now, there is no dispute that stated in that way it rather looks as if the owners of the "Royal City recover-

find that the ship, "upon the evid for loss caused by the wrongful act the case is unarguable. But Mred the cost of repairs. But they go on Antwerp, and there go through the pro- could, and would, have carned a profit rule is that those damages are such a ence before ine, but for the collision of the defendant, and the fundamental Langton has argued it, and we must and say, "Those repairs took four days cesses which were necessary to fulfil the ie, in these four days." deal with it.

With great sum of money as will put the plaintiff, The facts are these.

The "Royal days' loss of trading profit because you include muurchaser, particularly a

the collision

respect to the Registrar, I am quite so far as money can, in the same post- City," of about 5,000 tons gross, met with a very slight collision with the by doing this damage, have stopped because a

from trading French steamer "York," which resulted

the vessel for four Greek purchaser, would certainly use any evidence to enable him to make that days."

the existence of a large dent in the finding. The facts which I have stated in a not very serious dent on her bow, a dent which anyone could see, but we have not done anything of the less the seller undertook to repair it in because of her proceedings under the The answer made to that is this: how unrepaired to reduce the price un-seem to me to show clearly that the vessel could not have earned a proût which did not detract from her sea

sort. You could not have traded at order that he, the purchaser, might be contract of sale, and that the collision worthiness. Consequently, after the

this period if there had been no col-satisfied. collision, she proceeded for some two lision damage, because you were en-

had nothing to do with her failure to The Word "Delivery" voyages without repairing her dam gaged in fulfilling your contract ages. Having obtained her judgment sale by putting the ship into such a say,

There is one other word I desire to earn profit during those four days.

and that is this; Mr. Justice In those circumstances the report of damages, whether in the events that against have proceeded to recover her damages had wanted to; and what has happen measure on a view of the contract that group of items which are contain exception in the law of landlord and the "York," she might at once condition that she could not trade it she Butuses judgment theda in fastige must be varied by striking out the have happened he has suffered that damage or not. There used to he one without repairing it, and there is no ed is exactly what would have happened the word "delivery," when used, does under the head of loss of profit, other tenant where a lessor could recover doubt that in that case she would have if there had been zo collision and no not mean delivery to the purchaser wise the report is confirmed. The ap- recovered for the damage, because fe- damage at all. You would still have under the contract of sale, but means pellants must have the rests of the against his lessee damages for failure pairs are only a method of estimating opened up this ship for inspection of tendered to the purchaser in order that appeal.

to repair at the end of the leasy ul- the amount of the damage; and there is boilers, engines and tanks, and you he may make his superficial inspection.

though the repairs would have been no doubt in that case she would bave would not have been able to trade. Hut In my view the number of times that

absolutely useless to the landlord be- Lord Justice Greer-I agree. It is cause of the building having to come recovered the estimated damages for the fact that you were not able to trade the word "delivery" is used in the con- unnecessary for me to say anything down; it was just as easy to take it her loss of trading profits during the is nothing to do with the collision. Ittract preclades that view of the con- Iron days which pair the damage which was because you had sold the ship and tract, and the view, therefore, which with regard to the facts of the case down without the repairs as to take it proper time to repair the damage which the buyer required a certain amount at Mr. Justice Bateson took, in my opinion, judgment, but I want to say a faw However, that exception has been done which have been stated in my lord's down after the repairs had been done. inspection which would prevent the ship is not well founded, because I think words about the principles that have to from trading."

his construction of the contract is be applied in estimating damages. But she did not take that course. At

It seems to me that put in that way wrong. the end of December, 1927, her owners the case comes exactly within Lard contracted to sell her to a Greek gootle Sumner's one sentence in the "Ikala" nan, and the contract of sale, dated

(1929 Appeal Cases, p. December 21, 1927, stated that the actual question

In the "kala”. was "expected ready for whether a ship claiming damages for "Royal

between, say, January collision could recover the high pro- 31," which, on the decisions, is

fits that would have been made in trad- ranty that the facts at that time were ing in a way in which by agreement she such that she probably would be ready-

eau was prevented from doing; and the to deliver to the purchaser between Court of Appeal and the House of Lords those two dates. There was also by a small majority held that she could what is in the nature of cancelling nut. But, in the course of that case, clause "and to be delivered no Lord Sumner, who gave the leading later than February 25, 1928," which majority judgment a judgment con- does not interfere in any way with the

curred in by Lord Buckmaster-sald this at p. 206: "It has to be proved that, in doing the shipowner the wrong of laying his ship idle at the time in question, work which she would other wise have done during the time went undone to his measureable losa,

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In this ease there was which she would otherwise have done during the time, for the reason that by her contract of sale she had incapacitat- ed herself from doing any work at the fime; and, that being so, it appears to me that the ship fails to prove that the wrong of laying the ship idle was the result of the collision. The ship was idle because of the contract of sale and purchase, and the work which had to be done under it, and the work which had to be done under the contract of sale prevented the shipowner from do ing any other work at the time which the collision could have stopped him doing

Similar Point

A very similar sort of point seems to me to have arisen in the case which came before

London Eegistrar in tho the Glenfinlan," which was approved by Mr. Justice Hill in the Kingsway (1918 Probate Division, p. 344) ap proved expressly by Lord Sterndale in the ease in the Court of Appeal, and in my view approved by myself in principle without stating the name of the case in the first passage of my judg ment at p.862 In the case of the "Glenfialne" there was a collision; per- manent repairs were postpaced, bat be fore the permanent repairs were done the ship struck a mine and sunk, where upon the owners of the ship claimed, first of all, for the cost of doing the permanent repairs because the ship when sunk was of less value to them

Lord Justice Greet Concurs

away with.

(Continued on Page 5.)

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